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HomeMy WebLinkAboutContract 47546 CLEWED CITY EEC � 1 © 00 MCON'�CT Who FEB 2 5 2016 '00 (IIi'OF ORfyYORTII EASEMENT ENCROACHMENT NT LICENSE AGREEMENT (111 YS.�L` ARY `. Commercial THIS AGREEMENT is made and entered into by and between THE CITY OF FORT WORTH, a home rule municipal corporation of Tarrant County, Texas ("City"), acting by and through its duly authorized City Manager, its duly designated Assistant City Manager or Planning and Development Director, and D Fossil Creek, L.P., a Texas limited partnership ("Licensee"), owner of the real property located at 5800 Sandshell Drive, Fort Worth, TK 76137 ("Property"). RECITALS WHEREAS, Licensee is the owner of certain real property situated in the City of Fort Worth, Tarrant County, Texas, more particularly described in the attached Legal Description of the Property; and WHERE AS, the City has a fifteen foot (15') wide utility easement (the "Easement")in the Property as shown on the map attached to this Agreement as Exhibit "A" and incorporated herein for all purposes, and as more particularly shown on that certain Replat of the Stoneglen at Fossil Creek recorded in the Plat Records of Tarrant County, Texas at Plat Record Volume 388-188; and WHEREAS, Licensee has constructed and installed, and desires to repair, replace, remove, operate and maintain, a trash compactor enclosure, a retaining wall and other related improvements and equipment, which encroach onto a portion of the Easement; and WHEREAS, City will allow the encroachment under the terms and conditions as set forth in this Agreement to accommodate the needs of the Licensee. NOW, THEREFORE, the City and Licensee agree as follows: AGREEMENT I. City, in consideration of the payment by the Licensee of the fee set out below and covenants and agreements hereinafter contained, to be kept and performed by Licensee, hereby grants permission to Licensee to encroach upon and occupy a portion of the City's Easement for the purpose of repairing, replacing, removing, operating and maintaining, a trash compactor enclosure, a retaining wall and other related improvements and equipment (the "Encroachment") as described in and at the location shown on Exhibit "A" but only to the extent shown thereon. Upon completion of the Encroachment, Licensee agrees to be responsible for maintaining the Encroachment within and above the Easement. Licensee shall not expand or otherwise cause the Encroachment to further 2015 Easement Encroachment Agreement-Commercial OFFICIAL RECORD Page 1 of 13 C M 3ECRETARV Rev. 02/201 1333648.9 WRn a infringe in or on City's Easement beyond what is specifically described in the Exhibit(s) attached hereto. 2. All new construction, maintenance and operation in connection with such Encroachment, use and occupancy shall be performed in strict compliance with this Agreement and the City's Charter, Ordinances and Codes and in accordance with the directions of the Director of the Transportation and Public Works or the Director of the City's Water Department, or his or her duly authorized representative. Licensee shall submit all plans and specifications to the applicable Director or his or her duly authorized representative prior to any new construction in connection with the Encroachment. Licensee shall not commence any new construction of the Encroachment until receiving written approval by the Director, but such approval shall not relieve Licensee of responsibility and liability for concept, design and computation in the preparation of such plans and specifications. 3. Upon prior written notice to Licensee, except in the case of an emergency, Licensee agrees that City may enter and utilize the referenced areas at any time for the purpose of installing, repairing, replacing, or maintaining improvements to its public facilities or utilities necessary for the health, safety and welfare of the public or for any other public purpose. City shall bear no responsibility or liability for any damage or disruption or other adverse consequences resulting from the Encroachment installed by Licensee, but City will make reasonable efforts to minimize such damage. In the event that any installation, reinstallation, relocation or repair of any existing or future utility or improvements owned by, constructed by or on behalf of the public or at public expense is made more costly by virtue of the construction, maintenance or existence of the Encroachment and use, Licensee shall pay to City an additional amount equal to such additional cost as reasonably determined by the Director of Transportation and Public Works or the Director of the Water Department, or said Director's duly authorized representative. 4. Licensee agrees to pay to City at the time this Agreement is requested an application fee of$325.00 in order to defray all costs of inspection and supervision which City has incurred or will incur as a result of the construction, maintenance, inspection or management of the encroachments and uses provided for by this Agreement. 2015 Easement Encroachment Agreement-Commercial Page 2 of 13 Rev. 02/201 1333648.9 5. The term of this Agreement shall be for 30 years, commencing on the date this Agreement is executed by City. However, this Agreement shall terminate upon Licensee's non-compliance with any of the terms of this Agreement. City shall notify Licensee in writing of the non-compliance, and if not cured within 30 days, this Agreement shall be deemed tenninated, unless such non-compliance is not susceptible to cure within 30 days, in which case this Agreement shall be deemed terminated in the event that Licensee fails to commence and take such steps as are necessary to remedy the non-compliance with 30 days after written notice specifying the same, or having so commenced, thereafter fails to proceed diligently and with continuity to remedy same. 6. It is further understood and agreed between the parties hereto that the Easement to be used and encroached upon as described herein, is held by City as trustee for the public; that City exercises such powers over the Easement as have been delegated to it by the Constitution of the State of Texas or by the Texas Legislature; and that City cannot contract away its duty and its legislative power to control the Easement for the use and benefit of the public. It is accordingly agreed that if the governing body of City may at any time during the term hereof determine in its sole discretion to use or cause or permit the Easement to be used for any other public purpose, that does not preclude the use of the Encroachment on the Property, including but not being limited to underground, surface or overhead communication, drainage, sanitary sewerage, transmission of natural gas or electricity, or any other public purpose, whether presently contemplated or not, that the parties agree to negotiate in good faith in order to accommodate the Encroachment and the public purpose. 7. LICENSEE COVENANTS AND AGREES TO INDEMNIFY, AND DOES HEREBY INDEMNIFY, HOLD HARMLESS AND DEFEND CITY, ITS OFFICERS, AGENTS, SERVANTS, EMPLOYEES, AND ELECTED OFFICIALS FROM AND AGAINST ANY AND ALL CLAIMS OR SUITS FOR PROPERTY DAMAGE OR LOSS AND/OR PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, OF WHATSOEVER FIND OR CHARACTER, ARISING OUT OF OR IN CONNECTION WITH, THE CONSTRUCTION, MAINTENANCE, OCCUPANCY, USE, EXISTENCE OR LOCATION OF THE ENCROACHMENT AND USES GRANTED HEREUNDER, WHETHER OR NOT CAUSED, IN WHOLE OR IN PART, BY THE NEGLIGENCE OF OFFICERS, AGENTS, SERVANTS, EMPLOYEES, CONTRACTORS, SUBCONTRACTORS, LICENSEES, ELECTED OFFICIALS, OR INVITEES OF THE CITY; AND LICENSEE HEREBY ASSUMES ALL LIABILITY AND RESPONSIBILITY FOR SUCH CLAIMS OR SUITS. LICENSEE SHALL LIKEWISE ASSUME ALL LIABILITY AND RESPONSIBILITY AND SHALL INDEMNIFY CITY FOR ANY AND ALL INJURY OR DAMAGE TO CITY PROPERTY ARISING OUT 2015 Easement Encroachment Agreement-Commercial Page 3 of 13 Rev. 02/201 1333648.9 OF OR IN CONNECTION WITH THE ENCROACHMENTS AND ANY AND ALL ACTS OR OMISSIONS OF LICENSEE, ITS OFFICERS, AGENTS, SERVANTS, EMPLOYEES, CONTRACTORS, SUBCONTRACTORS, LICENSEES, OR INVITEES. 8. While this Agreement is in effect, Licensee agrees to furnish City with a Certificate of Insurance naming City as certificate holder, as proof that it has secured and paid for a policy of public liability insurance covering all public risks related to the proposed use and occupancy of public property as located and described in Exhibit"A" The amounts of such insurance shall be not less than $1,000,000 Commercial General Liability with the understanding and agreement by Licensee that such insurance amounts may be revised upward at City's option and that Licensee shall so revise such amounts immediately following notice to Licensee of such requirement. Such insurance policy shall not be canceled or amended without at least 30 days prior written notice to the Building Official of the City of Fort Worth. A copy of such Certificate of Insurance is attached as Exhibit "B" and incorporated herein for all purposes. Licensee agrees to submit a similar Certificate of Insurance annually to City on the anniversary date of the execution of this Agreement Licensee agrees, binds and obligates itself, its successors and assigns, to maintain and keep in force such public liability insurance at all times during the term of this Agreement and until the removal of the Encroachment and the cleaning and restoration of the Easement. All insurance coverage required herein shall include coverage of all Licensees' contractors and subcontractors. 9. Licensee agrees to deposit with City when this Agreement is executed a sufficient sum of money to be used to pay necessary fees to record this Agreement in the Real Property Records of Tarrant County, Texas. After being recorded, the original shall be returned to the City Secretary of the City of Fort Worth. 10. Licensee agrees to comply fully with all applicable federal, state and local laws, statutes, ordinances, codes or regulations in connection with the construction, operation and maintenance of the Encroachment and uses. 2015 Easement Encroachment Agreement-Commercial Page 4 of 13 Rev. 02/201 1333648.9 11. Licensee agrees to pay promptly when due all fees, taxes or rentals provided for by this Agreement or by any federal, state or local statute, law or regulation. 12. Licensee covenants and agrees that it shall operate hereunder as an independent contractor as to all rights and privileges granted hereunder and not as an officer, agent, servant or employee of City, and Licensee shall have exclusive control of and the exclusive right to control the details of its operations, and all persons performing same, and shall be solely responsible for the acts and omissions of its officers, agents, servants, employees, contractors, subcontractors, licensees and invitees. The doctrine of respondeat superior shall not apply as between City and Licensee, its officers, agents, servants, employees, contractors and subcontractors, and nothing herein shall be construed as creating a partnership or joint enterprise between City and Licensee. 13. Licensee agrees and acknowledges that this Agreement is solely for the purpose of permitting Licensee to construct, maintain and locate the Encroachment over or within the Easement and is not a conveyance of any right, title or interest in or to the Easement nor is it meant to convey any right to use or occupy property in which a third party may have an interest. Licensee agrees that it will obtain all necessary pennissions before occupying such property. 14. In any action brought by the City for the enforcement of the obligations of the Licensee, City shall be entitled to recover interest and reasonable attorney's fees. 15. The parties agree that the duties and obligation contained Sections 3 and 4 shall survive the termination of this Agreement. 16. Licensee covenants and agrees that it will not assign all or any of its rights, privileges or duties under this Agreement without the written approval of City, and any attempted assignment without such written approval shall be void. In the event Licensee conveys the Property, Licensee may assign all of its rights and obligations under this Agreement to the new owner of the Property, and Licensee shall be deemed released from its duties and obligations hereunder upon City's approval in writing of such assignment, which approval shall not be unreasonably conditioned or withheld. Foreclosure by a secured lender of Licensee or assignment to a secured lender by 2015 Easement Encroachment Agreement-Commercial Page 5 of 13 Rev. 02/201 1333648.9 Licensee in the event of default or otherwise shall not require City approval provided that said lender notifies City in writing within 60 days of such foreclosure or assignment and assumes all of Licensees' rights and obligations hereunder. However, no change of ownership due to foreclosure or assignment to any secured lender of Licensee shall be effective as to City unless and until written notice of such foreclosure or assignment is provided to City. 17. Any cause of action for breach of this Agreement shall be brought in Tarrant County, Texas. This Agreement shall be governed by the laws of the State of Texas. 18. This Agreement shall be binding upon the parties hereto, their successors and assigns. [SIGNATURES APPEAR ON FOLLOWING NG PAGE] 2015 Easement Encroachment Agreement-Commercial Page 6 of 13 Rev. 02/201 1333645.9 THIS AGREEMENT may be executed in multiple counterparts, each of which shall be considered an original,but all of which shall constitute one instrument. City Licensee: CffTY OF FORT WO TII D FOSSIL CREED, L.P., a Texas limited partnership By: By: D Spirit, LLC, ndle Harw d a Colorado limited liability company, Director its General Partner Planning and Development By ZLuk4eSimpson, Manager Date: 7 /�4 , 20 ATTEST: Approved As To Fonn and Legality City Secreta y Assistant City Attorney 2015 Easement Encroachment Agreement-CommercialP� Page 7 of 13 P�U Rev. 02/201 1333648.9 !('Ile STATE OF TEXAS § COUNTY OF TARRANT § This 19,skument was acknowledged before me on by all Harwood, Director of the Planning d Development a tment of the City Fort Worth, on behalf the City of Fort Wort . I \1111/II CASSANDRA F. FOREMANo ary Public, State of Texas Notary PuVIC,state of Texas l My Commission[xpires April 26, 2017 After Recording Return to: Cassandra Foreman Planning and Development Department 1000 Throckmorton Street Fort Worth TX, 76102 2015 Easement Encroachment Agreement-Commercial Page 8 of 13 Rev. 02/201 1333648.9 STATE OF (Aaado § COUNTY OF t�AV W § BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas, on this day personally appeared Luke C. Simpson, Manager, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he/she executed the same for the purposes and consideration therein expressed, as the act and deed of D Spirit, LLC, a Colorado limited liability company, as General Partner of D Fossil Creek, L.P., a Texas limited partnership, and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this 23fc' day of WM , 201�_ . [NOTALESLEY A.FLEMING NOTARY PUBLIC STATE OF COLQRADO 0 2014402381J2018 Notary Public in and for th R , OMMISSION EXPIRES JUNE 1State of Cc)(LoaW 2015 Easement Encroaclunent Agreement-Commercial Page 9 of 13 Rev. 02/201 1333648.9 LEGAL DESCRIPTION OF THE PROPERTY BEING dh of Lot I R, Eock 6 of FFepKA 0 ;tE�uyl-m I Faw l Creek, all CoVi gut Y,, Pogei--1 47.22 and 4321-3. Oat DuroM Grum., 44am and beirug More porPLk dlody described raj BEGANNTNG, at r 1 ';12Von tour- ��� currier un ?f a alar fhL �ighA-Fa,j,,� u� Il l;1= "f . �1a _ �c •� 1�,�- r � rr� r� i �s the r1:a�mt o}dE easterly corner of aero Lul 1, Muck 36 of Stun' eyic€r .zt Fu; ,--al CrLtk, THENCE,, vi fuLt1wing bunny 7,jnd distanceA na-lonq the rrcitflb r(gh1-n1- .UFj Cine- Fn Ls I Cre ,if said :-7 -6k R@Lj1fW0Td Westurly Paolo-,- o ra-iLuluB uu.FAL I: m, lteft h'viltY 0 oerllr�al an4 �il`' r '1j' '0 , d rd .res of ARM left, o ;"Iaofd bearing N L '1-tj'2`" F d t Arl'® of 34,00AG Fa°T r1'; rt" a-�Auri' L' `i �1fa.F �` feet %, P 112 rPon foj set fir vorner of tmt poirt ol" eoni3errr.y.3 N04h MON, West -o -distules-e C0 543 3, I ael to a 1 12 Y iron rat, found icir cor,,--e1 Fat the- pint of r--.uT'otuT for d circ or to the i igtt, hwwing. 3�ntrol cang1e of P. h `,J', d ra1j-ilv:= of J41 1,=z fee( o chord b eor ng N;=.1h 45'010" West u Mum of `t�10 leer; 9gjc F �� SR 1. �� � ' nzn g= 4i I�uy curnu .nl ° . u[7:[ �r . of , 1 Ui �n._i r 1, a s.. torr jenny on the edul Qht-of-w aFP ,;free of Sv -4ie-1l 11 (1INJ,; ThEN E, to 1'lal raF rr beal- y and dAtuncui 6'xlq Ifie eust n North ��`�'.�F 55Wuw� a ae'. lurtw of SAO 'I rut 6: ni 1/2'2' Ir'Ln rad -et far uragrw-, u the p inr' of curvaluri�- In: a uirruk.,t c ivv bui tart IF:Ot, r; hAdh WWI" We4si. 0 c*istomt of 5.31 fut-4 ro n- 112' iron rod xo. for torner: kurth 2-LI'40'41' West, a d.,sionce of 6AM hw, 'xj �o 1,/2' iron read, 7,et 1 o uorner Edi a point !.,jn a r_-.i-,Fojkor curie to ine rrgh , havirg a ceentrai' Ugle W 02551n o rabus W 1 ,656,1)0 ieef, beoring North KRA' Wall C d"tance IS 302ley Nei; NaA'rhweisterly :ilurny ---,Lid ciicular curee- to IN- rf MT' 'IfT, nrc of 10130 Net in) a 1/2" It rot set Ar corner: IHMC'�E, 4' orth ATZAR0 Last., departing soid earl way lirte. a g Wance of 5JI55 Nei In a q r/2" !ron rod fowwf Jpr rn�xn-er; IAFNCQ Saki FaA% ar-_& 243.61!"i foot :j 112' irwi rud lc.;2nd 1w r i-T u r-, DIFNCE, �ouhkr �0'410'41y Eq,0, �-,, �Jisrwrzee cc' 5.' j fee_� if. a 1/"'J" iron rria 1,=urec_irrnula, ft- 7 it Phe painA al ctjroaltjr-_� iv n -ft r, r-entrol angle -.,)r o rodit_va iat A7.00-j a LKDrj bewirr� 'SuLAVI WAS LaGt a &tan,.�e 510Wl feio,; FAAWL, olong W ckular tow Q the Pit, un oft: Kim= u! 5107 1`0 W a 1/2" Pon rot found W -at th'E poini of 1_wrvoture �ol u cueu'�:x curvu In the 101 having iz_- ong--e. of 40511F a wdis W 14TOO Wo w rhuird Ankrig r-1 Sc�gwth f.5-GYb24 EM o Mance o! TISAR feet, ['HENCE, and -Avg �,,Jd 6irWqr to ,he lel"t, qn ore Munce W 119-10 fed to on 717 in cowke fn,ir;d �,c.r ccmiv, INE WL tooth 1 09"S I" Ust c ANN m of 2,48.46 fear �o a 1/2' i an r act iounij fox evney on a Awslur wrve to Ihe 1eq, having rv, C-entral CJ77,�gle, (�'if WHO 7 Tumlius of h45F.,7 took c thug be�-ot -jr�jq uftL, 7439'35' Fa-zd a dis-lionce TOENCE, Suulheu�icfl,,w urvcf Narthe-ailvriy wkzing sakt tirir slat oirye, y, the left, nn arc lir anve Gi 13554 feet to �,2 1/2' irtin rod �c-unt!, far cxnur; 71117N(T, 5'14'5fY a, distar rct_-- of 404.84 fee to the POINT F H-EC'NNING and. woboh;nq 1472,910 feel fznr ,eyes i7f Inna'.' MoNor nets= 2015 Easement Encroachment Agreement-Commercial Page 11 of 13 Rev. 02001 IB3"8.9 EXHIBIT "A" Map of Encroachment and Easement `ail, t` .A LTIUT u� -'- ;• EVC Pr'I,;I'NIVE1T t+ 4r.;E; �I r ACt SFr= t t, 1 1'J' C. I TILIT E;S.T Fri ter• '-SITE -_ _- 2 I.7,F.. , _ ARE E CIR-.CHVENT zw 5 IN 1!4�.EVERT 41 7 +rA ' rvi�r � II ALL - �Tf '-.rt i�,4�L• F5 %.f I Irl Jl,' l ,/'_i'". w E _i �i I.NNHCLE ELE`nT,' HCY i 5_ TWEE :C?.LE V,,, FEET ENCROACHMENT AREA ' HEEI` `d'.=.: ENGINEER IN ,INC. - PART OF LOT 1 R, BLOCK 36 141; W. WAIN SMUT, €AftkOMON, TX 75006 FORT WORTH, TEXAS PH: (972)245-9L78 / FAX: (972)245-7037 FILE roti.:.P_E56 OF 2015 Easement Encroachment Agreement-Commercial Page 12 of 13 Rev.02/201 1333648.9 EXHIBIT "B" Certificate of Insurance --n ! 7HI' F-h''I lrlr TE i.ISSUE-,A5 A ,.t.T-aP'GIF PDN`NJ_Y Ffd'_t Ctir•!.EH!i NC, +`It,l- LF r,Pt Ti€=_Cc;TIE'Fr G. _F DLTJ'ERt e"I!:i CERTIFIGA F Grl_•_M37 AFFIRMAINZLY oR t3EGATIVCLY AMEND, EXTEND O AITEF. Hi C? 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L L iriLl O rlrr 'If-._L DE DEL7VLREC 114 i L r,y6:CtAPar_.E WIT-1I dL PUL:CV t•.U.IoI JF<s ! 14r. tl_ _2r1.ACCW.. _,+pr ,,p0N 1AI rirh,Sees e r ;. ACDF ' _I204' : ;1 ACCRE, r- 2015 Easement Encroachment Agreement-Commercial Page 13 of 13 Rev. 02/201 1333648.9 STATE OF CL�Q § COUNTY OF I/ § BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas, on this day personally appeared Luke C. Simpson, Manager, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he/she executed the same for the purposes and consideration therein expressed, as the act and deed of D Spirit, LLC, a Colorado limited liability company, as General Partner of D Fossil Creek, L.P., a Texas limited partnership, and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this 23�Ckday of I CA"OU/ _, 20 "- . LESLEY A. FLEMING NOTARY PUBLIC I STATE OF COL()RADO Notary Public 'n and for the NOTARY ID 20144023812 y MY COMMISSION EXPIRES JUNE 13,2018 State of CUr 2015 Easement Encroaclunent Agreement-Commercial Page 9 of 13 Rev. 02/201 1333645.9